Nevada County pot ordinance in crosshairs | TheUnion.com

Nevada County pot ordinance in crosshairs

On Tuesday, Nevada County voters will decide of which version of a medical marijuana cultivation ordinance they favor — the current nuisance-based guidelines, enacted three years ago, or Measure S, which substitutes a new set of guidelines that supporters say are sensible and easier to follow for growers who want to be in compliance.

Measure S opponents, however, insist that the current ordinance has helped reduce complaints and keep the issue under control.

How well the current ordinance is working is open to debate; law enforcement officials insist that it is working very well indeed, pointing to a drop in the number of complaints received this year. Attorneys for growers are not so sure, with several legal challenges mounted this year.

According to Nevada County Sheriff's Lt. Bill Smethers, the proof is in the numbers. He contends the Sheriff's Office received 379 total complaints last year, compared to just 231 complaints logged as of Oct. 29 this year.

"Obviously, complaints are way down," he said. "Complaints are down because the ordinance is working. More people are coming into compliance — with smaller grows and better fencing, that keeps it hidden from public view."

The number of compliance checks performed did not drop as dramatically, however. As of Oct. 29 of this year, 96 compliance checks had been completed; that compares to 113 checks completed up to Oct. 1 during the 2013 season.

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Most of the compliance checks found multiple violations, Smethers said, including square footage, fencing, electrical issues, and terracing.

"There is a lot of misunderstanding regarding terracing," he said. "We're concerned about erosion and environmental effects. Square footage is a huge issue. We're also seeing a lot of growers from out of county."

Deputy County Counsel Jamie Hogenson, who has been assisting the Sheriff's Office in appeal hearings, said it was important to point out that gardens were only being abated to the point that the grow is in compliance.

"They're not cutting down the whole garden, unless there are multiple violations and nothing has been brought into compliance," Smethers added. "Everybody thinks we're out there cutting everything down, annihilating their property, but we're not."

From Hogenson's perspective, the ordinance provides the most effective mechanism to respond to any potential nuisance growers might be creating.

"The vast majority of appellants do make some effort to come into compliance," she said. "That way, we can start a dialogue (with the appeal process) — it becomes less adversarial."

Constitutional issues have attorneys concerned

Several attorneys who have represented growers appealing abatement notices expressed concern with the process, especially when it comes to Fourth Amendment rights.

"The hearing officers are not trained to know anything about the issue, and they're trained to ignore constitutional questions, including illegal search issues," said attorney Jennifer Granger. "It seems as if they're using the ordinance to ride roughshod over people's private property rights."

Ganger added that she found it disturbing that during appeal hearings, the exact nature of the complaint is not provided.

"In every single hearing, I ask the deputy, was the compliance check triggered by a complaint, and every single time, the answer has been yes," she said. "Then I ask, can you tell me what the complaint was, and they always say they don't know. … I understand it's anonymous, I'm just asking for the nature of the complaint."

Attorney Heather Burke filed two separate cases this year in which she claimed the abatement and enforcement process was not conducted properly.

In the first case, Nicholas Patch versus Nevada County, Patch's garden was inspected on July 30 and was found to not be in compliance because there was no structure on the property.

According to Burke, there was an issue as to the definition of a structure, but at the appeal hearing on Aug. 29, the officer refused to hear her legal argument.

Both before the hearing decision, and afterwards, Burke said, she made multiple attempts to contact county counsel, asking that any abatement be postponed until after a temporary restraining order hearing. The day before the hearing, the Sheriff's Office got a warrant and abated Patch's garden.

At the hearing, the judge said the restraining order request was moot because the garden had been abated.

"Even if their actions were legal … it engenders distrust in law enforcement and in county government," Burke said.

In Burke's second case, representing Kenneth Powers — he went into compliance before the TRO hearing — Judge Sean Dowling referred back to the Patch abatement in critical terms.

"How do you think it looks to the court when somebody's following the rules … and the purpose of going to court is frustrated by the county's going out and removing the offending garden between the date of notice and the date of hearing?" he asked Assistant County Counsel Sheri Chapman. "It might look like the county is trying to avoid judicial review of the issues."

Later in the hearing, Dowling said the county's actions raised "issues of gamesmanship and trustworthiness."

While Dowling did say he believes the ordinance is constitutional, he added that the county must afford appellants the opportunity for judicial review.

Despite the fact that Nicholas Patch's garden was abated, Burke continued with her petition to set aside the abatement, in order to set a precedent, she said.

County counsel filed a demurrer to her petition, and Dowling issued a tentative ruling Friday that proved to be a partial victory for both sides.

According to County Counsel Allison Barrett-Green, Dowling's ruling said the abatement process and the ordinance is constitutional.

Dowling did find that the county may enforce marijuana cultivation statutes by nuisance actions and police powers.

"Petitioner has provided no legal authority to support the argument that hearing officers have the authority or the requirement to analyze Constitutional issues," Dowling wrote.

But Dowling did give Burke leave to amend her complaint, overruling the county on one point.

Burke has until Nov. 10 to file an amended petition, and indicated Friday that she intends to do so.

To contact City Editor Liz Kellar, e-mail lkellar@theunion.com or call 530-477-4229.

Marijuana complaints

— 231 complaints have been filed as of Oct. 29.

— Approximately 96 compliance checks have been completed with citations written as of Oct. 29

— Deputies have abated nine gardens, for a total of 241 plants by obtaining abatement warrants

— 40 gardens have been self and/or owner abated

— 12 compliance checks found marijuana grows on parcels with no legal residence

— 5 compliance checks found marijuana grows that are within 1,000 feet of a school or school bus stop

— 54 appeals have been filed with the Board of Supervisors as of Oct. 20

— 50 rural zoned parcel owners/tenants have been cited for gardens being over the allotted square footage per the ordinance

— 26 residential zoned parcel owners/tenants have been cited for gardens being over the allotted square footage per the ordinance

— 55 gardens have been cited for fencing that was not up to code

— 55 gardens have been cited for fencing that was not secured

— Statistics courtesy Nevada County Sheriff’s Office